Gender Identity, Sports, and Affirmative Action: What’s Title IX Got To Do With It?

Abstract

This article explores two related questions. First, does Title IX require recipients of federal funds to allow transgender females to participate on female-only sports teams -- or does it prohibit that participation? Second, does Title IX require sex-segregated sports teams? The two questions are related because the rationale for a positive answer to the second question (opportunities for women to compete on the varsity level without male competition) is the basic rationale for precluding participation by certain transgender females. Curiously, though, neither the statute, Title IX regulations, or the famous (or infamous) interpretations of those regulations explicitly state that separate teams are required. In fact, the regulations state only that they are permissible under certain circumstances (after stating that they are generally prohibited). The article examines how we have arrived at the conclusion that separate teams are required and what consequences there might be for other anti-discrimination laws (like those prohibiting age and disability discrimination) if they are. It also looks at whether assigning transgender individuals to one sports team or another is “sex discrimination.”